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2018 DIGILAW 1430 (HP)

Chuni Lal v. Durga Dass

2018-08-01

CHANDER BHUSAN BAROWALIA

body2018
JUDGMENT Chander Bhusan Barowalia, J. - The present petition is maintained by the petitioner, under Article 227 of the Constitution of India, for quashing and setting aside the impugned order, dated 7.3.2018, passed by the learned lower Appellate Court, in CMA No.679 of 2017, in Civil Appeal No.180 of 2017, whereby an application, under Order 41, Rule 5 read with section 151 of the Code of Civil Procedure, operation of the judgment passed by the learned Court below, in Civil Suit No.605 of 2009, dated 6.11.2017, was stayed, subject to furnishing security bond in the sum of Rs. 1,00,000/- with one surety in the like amount to the satisfaction of learned Trial Court within a period of one month. 2. Brief facts giving rise to the present petition are that the petitioner/plaintiff (hereinafter referred to as the ''plaintiff'') maintained a suit for possession and separating the share of parties by passing a preliminary decree of partition against the respondent/defendant (hereinafter referred to as the ''defendant'') alleging that land comprised in Khata No.254, Khatauni No.525, Khasra No.657, measuring 45.48 square meters (Gairmumkin Dukaan Pakki Teen Manjila) situated in Up Mahal Shiv Nagar, Mauza Bajuri, Tehsil and District Hamirpur and land comprised in Khata No.194, Khatauni No.338, Khasra No.1740, measuring 398.25 square meters (Gairmumkin Makaan Jer Tameer and Gairmumkin Sehan), situated in Up Mahal Gandhi Nagar, Mauza Bajuri, Tehsil and District Hamirpur (hereinafter referred to as ''suit property'') was jointly owned and possessed by the parties, as per their respective share in the revenue record. Due to jointness of the suit land, the parties were facing difficulty to make best use of it. There remained a dispute qua the exact share of the parties. The defendant was requested to get the suit land partitioned, but he refused to do so being in possession of abadi more than his share. Hence, the present petition. 3. Reply to the petition has been filed and it has been submitted that the defendant-respondent aggrieved on account of the judgment and decree preferred an appeal before the learned lower Appellate Court and also maintained an application seeking stay of the execution of impugned judgment and decree. It is specifically denied that the impugned order, dated 7.3.2018, is unsustainable in the eyes of law or is liable to be quashed. It is specifically denied that the impugned order, dated 7.3.2018, is unsustainable in the eyes of law or is liable to be quashed. Preliminary decree has been passed by the learned Trial Court, which has been ordered to be stayed in view of arguable points involved in the appeal. Though, no rider ought to have been put by the learned lower Appellate Court, while staying the execution of the decree passed by the learned Trial Court, the learned lower Appellate Court has granted stay of execution of the judgment and decree passed by the learned Trial Court, subject to furnishing of security bond in the sum of rupees one lac with one surety in the like amount to the satisfaction of the learned Trial Court within one month. On account of the aforesaid condition, imposed while granting stay of execution, the respondent could have been said to be aggrieved, however, the respondent has not assailed the impugned order, dated 7.3.2018, to the extent of imposition of condition to avoid unnecessary delay in disposal of appeal. It is further submitted that preliminary decree has been passed and in case, stay would not have been granted by the learned lower Appellate Court, the same would have gravely prejudiced the right of the respondent and the petitioner would have taken unnecessary advantage over the rights of the respondent. It is further submitted that the construction has been raised by the respondent exclusively by spending huge amount on the house consisting of four storeys on an express consent having been accorded by the petitioner for raising such construction. The respondent shall not be causing delay in disposal of the appeal preferred before the learned lower Appellate Court, in any manner. 4. Learned counsel appearing on behalf of the petitioner has argued that the learned Court below has stayed decree of partition and it is likely to take much more time for appeal to be finalized and the petitioner-plaintiff, who is a Senior Citizen, will suffer due to the pendency of appeal. He has further argued that the partition proceedings should be allowed to continue and the appeal may be heard by the learned lower Appellate Court till the partition proceedings are finalized. 5. He has further argued that the partition proceedings should be allowed to continue and the appeal may be heard by the learned lower Appellate Court till the partition proceedings are finalized. 5. On the other hand, learned counsel appearing on behalf of the respondent has strenuously argued that the impugned order dated 7.3.2018, passed by the learned lower Appellate Court, though subject to furnishing security bond in the sum of Rs. 1,00,000/- , even then, the respondent has obeyed that order. As the appeal is required to be adjudicated upon, the impugned order passed by the learned Trial Court needs no interference. 6. In rebuttal, learned counsel appearing on behalf of the petitioner has argued that the land of brothers i.e. plaintiff and defendant, in all probabilities has to be partitioned and the intention of respondent is only to delay the partition proceedings, as the petitioner is in advance stage of age, the interest of justice only lies in allowing the partition proceedings going on and the stay application was also required to be dismissed by the learned Court below. So, the order passed by the learned lower Appellate Court may be modified and the application filed by the petitioner alongwith appeal for stay may be dismissed. 7. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the record in detail. 8. From the perusal of record, it is clear that the parties are real brothers and the suit was maintained by the plaintiff-petitioner for decree of partition, which was allowed, thereafter, the appeal was maintained by the respondent before the learned lower Appellate Court. The learned lower Appellate Court has passed the following order in application under Order 41, Rule 5 CPC read with section 151 of the Code of Civil Procedure, which reads thus : "Heard on the application under Order 41, Rule 5 CPC. Appellant/applicant filed this application for the stay of operation of the judgment and decree passed by the learned Civil Judge (Senior Division), Hamirpur, in Civil Suit No.605/2009 decided on 6.11.2017 vide which the suit for partition has been decreed and preliminary decree has been passed. The counsel for the appellant/applicant averred that in case the operation of the judgment and decree is not stayed, the appellant will suffer irreparable loss and injury. The counsel for the appellant/applicant averred that in case the operation of the judgment and decree is not stayed, the appellant will suffer irreparable loss and injury. The application is objected on the grounds that there is no merit in the appeal and there is no substantial question of law involved in it and there are no arguable points involved in the appeal. The judgment and decree is legal and valid and same is not liable to be interfered. There is no question of suffering of loss or injury if the execution of the decree is not stayed and prayed for dismissal of the application. Since the main appeal has been admitted for final hearing which will take time for its disposal. Therefore, the application is allowed and operation of the judgment and decree is stayed before the learned trial Court till the disposal of this appeal subject to furnishing security bond in the sum of Rs. 1,00,000/- with one surety in the like amount to the satisfaction of the learned trial Court within one month. A copy of this order be transmitted to the learned trial court and this file be tagged with the main case file. Sd/- District Judge, Hamirpur (H.P)" 9. Now, at this moment, it is found that the learned lower Appellate Court has stopped the partition proceedings during the pendency of appeal. This Court finds that the petitioner has a case, as the very purpose of partition proceedings will go on, in case, the land is not partitioned inter se the brothers for a long time, simply for the pendency of appeal. So, this Court finds that the learned lower Appellate Court will make an every endeavour to dispose of the appeal of the petitioner within a period of six months from today, as otherwise, the petitioner is suffering injustice, as the possession of the land, alleges to be in possession as per him, he has denied the possession, because of non-partition of the suit land. In this view of the matter, the interest of justice will be met, in case, the present petition is disposed of by directing the learned lower Appellate Court to dispose of the appeal at the earliest and in any eventuality not beyond the period of six months from today. Parties, through their learned counsel, are directed to appear before the learned lower Appellate Court on 20th August, 2018. Parties, through their learned counsel, are directed to appear before the learned lower Appellate Court on 20th August, 2018. No order as to costs. 10. The petition, so also pending application (s), if any, shall stand (s) disposed of accordingly.